Three Illinois men can proceed with their class-action lawsuit challenging Facebook's practice of using facial recognition software to identify people in uploaded photos, according to a California federal court ruling earlier this month.

Adam Pezen, Carlo Licata and Nimesh Patel, all of the Chicago area, separately sued the social media giant in 2015, alleging Facebook illegally was collecting biometric data from people "tagged" in photos posted by other users.

Licata filed his suit in Cook County Circuit Court in April 2015, and Pezen and Patel filed in federal court in April and May 2015. All alleged that Facebook's use of facial recognition software violated Illinois' Biometric Information Privacy Act.

The three cases were combined and transferred to the Northern District of California court last summer before Judge James Donato, who ruled May 5 that the trio has made a valid complaint and can continue to trial.

Illinois enacted the Biometric Information Privacy Act in 2008 to regulate how individuals, companies and organizations could collect and use biometric data, which determine a person's identity based on unique biological or physical characteristics.

The law states no private entity can gather and keep anyone's biometric information without prior notification to and written permission from that person. Restricted data include things such as retina and face scans, fingerprints and voiceprints.

The plaintiffs argued that they never authorized Facebook to collect their biometric information when someone "tagged" them in a photo, which allows the software to memorize their facial features and prompt users to identify them in other images.

The plaintiffs are asking for $5,000 for each time Facebook intentionally or recklessly obtained their personal information in violation of Illinois law, and $1,000 for each time the company did so negligently, according to the suit.

Facebook asked for the case to be dismissed in October, arguing that the Illinois biometric law does not apply to scanning photos. The company also argued that Facebook's terms of use establish that California law would apply to any dispute a user has with the service, and California has no law analogous to Illinois' biometrics privacy statute.

Facebook company headquarters are in the San Francisco area.

Donato found that all three plaintiffs agreed to Facebook's terms of service, which indeed informed users that California law would prevail in any dispute. But Donato said that in cases where different statutes are at issue, a judge must defer to the state law that has the most at stake if it were subverted by the other.

"If California law is applied, the Illinois policy of protecting its citizens' privacy interests in their biometric data, especially in the context of dealing with 'major national corporations' like Facebook, would be written out of existence," Donato wrote in his ruling. "Illinois will suffer a complete negation of its biometric privacy protections for its citizens if California law is applied. In contrast, California law and policy will suffer little, if anything at all, if BIPA is applied."

Donato denied Facebook's motions to dismiss the suit. A conference for the case is scheduled for June.

"We were very pleased with the ruling. We think it's going to be an easy case to try," said Jay Edelson, one of the plaintiffs' attorneys.

A Facebook representative declined to comment specifically on the lawsuit but maintained that users have full control over implementing "tag suggestions" on their profiles and that the feature can be disabled at any time.

A version of this article appeared in print on May 11, 2016, in the News section of the Chicago Tribune with the headline "Calif. judge: Ill. Facebook `tagging' suit can proceed" —
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